The Lawfare Podcast: Six Counts Quashed in the Fulton County Case

[Introduction]

Anthony Michael Kreis: And so, you know, part of the thing here is that he says, well, you know, I'll probably, I would probably grant immediate review if you want to kick this up to the appellate court to see if this is sufficient, but I think what we're going to just see is, is Fani Willis go back to the grand jury, get the constitutional theory buttoned down. And then, you know, bring these charges again and go from there. I think that's probably what's most likely to happen.

Benjamin Wittes: I'm Benjamin Wittes and this is the Lawfare Podcast, March 14, 2024. Yesterday, on March 13, Judge Scott McAfee released an order quashing six counts of the Fulton County electoral interference indictment against former President Trump and his numerous codefendants. These charges related to allegations of soliciting violations of officials’ oath of office. Judge McAfee ruled that the charges were not pled with sufficient specificity. To talk over the order and its implications, I sat down with Anna Bower and Anthony Michael Kreis for a live recording of the Lawfare Podcast recorded before a live audience on YouTube.

We talked about exactly what a demurrer, let alone a special demurrer, is and what led Judge McAfee to dismiss these counts. We talked about what this order could say about how Judge McAfee might be thinking about the efforts to disqualify Fani Willis. We talked about whether it matters that these charges, but not a bunch of others, were dismissed, and we talked about whether the district attorney will go back to the grand jury to re-indict them. It's the Lawfare Podcast, March 14: Six Counts Quashed in the Fulton County Case.

[Main Podcast]

We are talking about, boy wonder Judge Scott McAfee's surprise ruling today, granting, I love using this word, quashal to six counts in the Fulton County racketeering slash other case against former President Trump, and fourteen, I believe, other remaining codefendants. And now there are six fewer charges in the case, and in order to have this conversation, we need a little bit of a vocabulary lesson in Georgia criminal procedures.

So, we're gonna front load everything with Anthony here because he has to go in about 20 minutes. So, first of all, for the uninformed, what is a demurrer? What is a special demurrer? And what makes a demurrer special? How is a special demurrer different from a motion to dismiss? What happens to these six charges that have been quashed?

Anthony Michael Kreis: I'll let Anna take that one.

Anna Bower: Well, okay. So, Judge McAfee actually takes some pains at the beginning of this order to explain to folks who might be unfamiliar with the weirdness of Georgia's challenges to the indictment because there are several different types. But I think, Ben, the way that people can think about it is that a special demurrer, which is what this, was the form of this challenge to the charges is kind of a request for a more, I think that as Judge McAfee wrote in his order, it's a request for an indictment that is more perfect in form. And it is a request for some, a more definite kind of statement or explanation of the charges.

So, it's all about how the indictment was written. It's very technical in that respect. It's not that Judge McAfee is saying you know, the conduct of these defendants don't amount to conduct sufficient to amount to a criminal charge. What he's saying is that the state didn't really draft this indictment in the way they should have. And in other jurisdictions, folks might be familiar with something called a bill of particulars.

So let's say that there is an indictment. And a judge finds that for whatever reason it's not specific enough to give the defendant's notice of what the charges are against them, what the theory of the case is, because that's the whole point of having an indictment that is, you know, kind of, what they say is perfect in form as well as substance is that you want to give the defendants notice and have their due process rights protected so that they know exactly what it is that's charged against them and have some sense or advanced sense of, of what the state's case is.

So, in other jurisdictions, if you, if the state hasn't really drafted the indictment in the way that a judge thinks that they should have. Then it, they can just supplement the indictment with something called a bill of particulars that kind of explains more fully what the particular, you know, details of the charges are, but in Georgia, we, we do not have the, the system for requesting a bill of particulars. And, and so when there is a special, a challenge under a special demurrer, if the judge decides that those counts ought to be dismissed because the state didn't, you know, articulate what it should have or sufficiently articulate elements of the crime of the indictment, then that means that the judge can quash those counts. We'll talk a little bit later about, you know, what the state can then do in response, but hopefully that kind of explains what a special demurrer is.

Benjamin Wittes: And if you've never had the experience of trying to pronounce the word demurrer with an audience in front of you, I think that's a special kind of stress that only people who do podcasts and live television have really ever experienced.

Anna Bower: Yeah, I, look, I'm still just always problem gonna say demurrer-er instead of demur-, I don't know. And there's

Benjamin Wittes: Also demurrer-er-er-er.

Anna Bower: Like demurrer.

Anthony Michael Kreis: Demurrer.

Benjamin Wittes: Yeah, but that's, then you're describing a damsel in distress, right? You know, there's no, there's no good way, like you, you could say demurrer, but it's no, it's a terrible word and they should replace it with something modern, like dismissal. All right, Anthony, how big a deal is this? The New York Times sent out a blast notification, you know, that interrupted my morning meeting. Is this a big deal or does it is, is it less of one than you think?

Anthony Michael Kreis: I think it could be. I, I'm kind of in the position where it's like, yes, it's a, it's a big deal, but it's, it's more of a big deal depending on what the DA does, right?

So, right, ultimately, the DA gets another bite of the apple and, and can go back to the grand jury and, and with greater specificity spell out exactly what it is she says that was done unlawful and, and right, and kind of give with some kind of granularity and specificity details about what the theory of criminality is and, and we can talk more about what the actual issue is later. But if she doesn't go back, you know, on the one hand, I, you know, I guess that's a few, a handful fewer headaches for some of these defendants but they still face racketeering charges and all the other big charges that they had already. So those aren't disturbed. I, I don't know. I think what it is essentially, it's going to be the DA is going to step back and probably go back to the grand jury and, and attempt to get, you know, this kind of more perfected indictment to bring these charges again.

And I think at the end of the day, then, you know, we'll have, you know, we'll have a kind of another debate whether those are, are valid. And I'm sure there'll be appeals later about that, but I don't know. I, I don't think that ultimately these counts are going to go away. I think they're just going to come back and we'll be having another discussion about, you know, whether these superseding indictments are going to be a big deal or not. And so, you know, but if the DA doesn't decide to go back to the grand jury and decides to kind of give up on it, you know, the, that's a win for these defendants. But at the same time, that might also be strategic in the sense that it speeds things up. Maybe

Benjamin Wittes: It narrows the case,

Anthony Michael Kreis: Makes the case narrow, more narrow. So, you know, I don't wanna call it a wash, I just don't think it's, you know, it's not just kind of like this monumental, epic change in the dynamics. I just don't see it that way. I see it as just kind of something that is temporarily dislodging whatever, whatever the momentum was. I mean, but again, we also have the disqualification issue, which I know we've discussed before, too. So there's a lot of like a lot of moving parts here, and I just I think it's easy to overstate it. I think it's probably easy to understate it. We'll just have to see.

Benjamin Wittes: All right, so, what is the problem with these six counts? It's a short order. A lot of it is setting up the law and the actual account of what the DA did wrong here and what's wrong with this pleading is very brief. Summarize it for us. Give us a sense of, of what led to this quashal.

Anthony Michael Kreis: So I, I think that let's just, I mean, as a constitutional law professor, let me just say that I, I think it's important to be steeped in constitutional law and Fani Willis could use a few constitutional law experts right now because that's essentially the core.

Benjamin Wittes: Are you volunteering?

Anthony Michael Kreis: I, I'm not volunteering. I will, I will charge $250 an hour at six minute, six minute increments. But- I'm joking, but for those out there, I, but I, I do, I charge much more, anyway, jokes aside. They, they don't have the constitutional theory in place for why these certain acts-- Well, let me, let me just start off a bit and say what the charges were, right, which is these individuals, these defendants were, have alleged to induced certain officials or try to induce, try to solicit individuals in state government, the Secretary of State, members of the General Assembly, to violate their oaths of office.

And their oaths of office are basically, right, as most people would expect to uphold the Constitution of the United States and uphold the Constitution of the state of Georgia. Now, what precisely in that oath or how exactly that oath was attempted to be, to be violated or how, you know, what the oath exactly required those officers to do was not really spelled out.

So, one problem. When the state legislature met, and particularly the state senate, and Rudy Giuliani and John Eastman and all these folks came and said you need to replace the electors with your own slate of electors. The argument is, well that would have violated the Constitution and therefore it would have been a violation of oath of office for those elected officials to do that. But, it's not really clear in this indictment, what the theory is behind that. So was that, would that be a violation of the 14th Amendment in equal protection? Is that a First Amendment political viewpoint violation? What, what is it that that would have been the constitutional violation which would have triggered, right, that that oath being violated?

Similarly the Georgia Constitution, while it has many similar features to the federal Constitution, it is a different document, right? So it has other provisions like an express right to vote. Is that the provision that would have been violated if the legislature had basically usurped, you know, usurped their, you know, the authority that's given to them under the federal Constitution and, you know, basically subverted the results by supplanting their, their desired outcome for the one that the voters of Georgia wanted. Is that a, is that a distinct issue there? It's not spelled out.

And so, essentially what Fani Willis would have to do to bring these charges back is to get a really good constitutional theory as to why what these defendants were asking elected officials to do would have violated the state and federal constitution. And that was just never really spelled out. And I think the other thing that's important here, and Judge McAfee notes this with, I think, some, some degree of, I guess, I should say, he importantly notes it or highlights it, is that this kind of a charge and the theories behind it are, are fairly novel. Right, this is not something that we see routinely in, in Georgia law or Georgia criminal proceedings.

What happened in the aftermath of the 2020 election was also incredibly novel and, and rare and unusual. So we're in this somewhat amorphous legal space. And so, you know, part of the thing here is that he says, well, you know, I'll probably, I would probably grant immediate review if you want to kick this up to the appellate court to see if this is sufficient. But I, I think what we're going to just see is, is Fani Willis go back to the, the grand jury, get the constitutional theory button down and then bring these charges again and go from there. I think that's probably what's most likely to happen. It's probably, I think, the easiest solution to this, but we'll have to see.

Benjamin Wittes: You know, a reasonable question that I suspect some viewers, listeners will have, is why should she bother? So, the racketeering case is untouched by this. I think there were originally 13 charges against former President Trump and Rudy Giuliani. So now there are seven and the major, the biggest ones are still there. She's basically lost five or six solicitation charges. Like why should she care very much? What, what is the work that these charges are doing that aren't done by the rest of the indictment?

Anthony Michael Kreis: Well, I think one thing to kind of lay out from the get go here is you know, there are folks and I, and I'm, you know, I don't really have a particularly strong opinion about this, but there are folks who said, well, it'd be so much simpler to just let it go. But I think, you know, folks who think that's likely don't, maybe, understand Fani Willis. Fani Willis doesn't let things go, and sometimes she, you know, punches back and fights back when she maybe shouldn't and doesn't, you know, sometimes, right, honey is a little better to use than vinegar and, you know, she'll just kind of, you know, punch back no matter what.

So I, I think, right, there are reasons why you would want to let it go, but I, I think there are, right, just kind of the personalities involved make that unlikely, but as a, as a legal matter you know, of course, I think it makes, again, it makes it simpler. But I do think there's something at least important maybe to the narrative here, right, which is the, this isn't just some like kind of run of the mill racketeering enterprise. This is, this was an attempt to overthrow a legitimate election and to violate and subvert the Constitution. And, and so these charges speak directly to the violation to the constitutional order, right? To the destruction of the constitutional order in a way that the other things don't, right? There, the other charges are, you know, related to, you know, solicitation of election fraud, which you could bring in any number of scenarios that don't really call into question, right, the fundamentals of American democracy.

Benjamin Wittes: This is the oath.

Anthony Michael Kreis: This is the oath. And this, and so it's, I think this is the thing. So, so here's the thing. If we want to like kind of compare it to the Jack Smith case in D.C., right, that election subversion case. Right, one of the charges is a very old statute that basically says you can't conspire, you can't deprive some people of their constitutional rights. That's, that charge speaks to the heart of what Donald Trump was really trying to do in 2020, which was basically you know, take a match to the Constitution and the basic premise that we are a, a, you know, a democracy, we respect the rule of law and we value the peaceful transition of power.

I think, right, this is kind of the, this was the parallel charge thematically speaking, right, in Georgia, which says this was a violation of the Constitution of the United States and importantly, right, the Constitution of Georgia, which again, guarantees the right of every citizen in Georgia to vote. And so, you know, yes, it might make it more complicated. Perhaps it, you know, going back to the grand jury could create some wrenches that are unforeseen. I think that's possible. It may be the case that even if she goes back and gets a more perfected indictment, that they'll get thrown out anyway, who knows? But I, I think there's also just something mission driven about these charges that not to say the other, the other charges aren't, but there's just something again, more kind of fundamentally, or that speaks more fundamentally to the nature of, of the anti-democratic forces in 2020 that were on the ground here in Georgia.

And, and speak to the heart of what Fani Willis is trying to do, I, I think, which has always been to vindicate American democracy and the rule of law and protect the right of individuals to have their ballots cast and counted properly.

Benjamin Wittes: Yeah, just to, I, I agree with that completely. And I think a important component of that is that this is the charge that very specifically goes to the phone call to Brad Raffensperger, right? So there is only one charge in this indictment, as I recall it, that says, hey, you got on the phone with Brad Raffensperger and said, hey, can you find me 11,678 votes or whatever it was. And that's this charge solicitation to a Georgia state official to violate his constitutional oath of office. And there's something symbolically nontrivial about losing that charge. And I think, just at a guess, she will want to go back to the grand jury and perfect that charge rather than have a weeks or months long litigation at the Court of Appeals to, to get it reinstated as written.

Before you have to jump off, there's an elephant in the room, and that's that Judge McAfee is also sitting on and has to, or says he's going to rule this week on the disqualification of Fani Willis. So I'm just going to state this in a provocative fashion. Would Judge McAfee have taken a tiny little bite out of this case on a symbolic issue that she can perfect if the day after tomorrow he were going to disqualify her entirely, or should we take this as a sign that maybe he's not about to disqualify Fani Willis?

Anthony Michael Kreis: I don't want to read too much into tea leaves. I think that's particularly dangerous. You know, if I had to put money on, on it one way or the other, I, I think it might lean me towards believing that disqualification is, is less likely to happen. In part because my instinct would be, and, and I guess there's really some confusion around, around this, but my instinct would be that no matter what happens with a disqualification issue, there will be the discretionary certificate to appeal issued by the court in all likelihood, in which case I believe things will be kind of held in abeyance, but, and then, right, he could have come back to this later. I don't, I don't know. Again, I, I don't want to overread it and say, you know, yes, this absolutely means X, Y, or Z, but I, I feel, I would feel a little bit more confident betting against disqualification today than maybe I was yesterday, but not by much.

Benjamin Wittes: All right, thank you very much for joining us, Anthony. You're a great American, and I'm sure you have a gazillion other interviews to do and calls to take. We appreciate your spending some time with us today. So, Anna, any thoughts in response to any points that Anthony made before?

Anna Bower: Yeah, so I, I didn't wanna interrupt and because he did have to go, but I, one thing I will add too, because because I, I agree with both of you that there's kind of this communicative aspect to the solicitation of oath of office charges that I think Fani Willis will, you know, want to go back to a grand jury for that reason, like you said, it is the charge that relates to that infamous phone call with Brad Raffensperger.

But one other thing I would add as well is that if you look at the individuals who had these counts dismissed, the one person who only had two charges that were, you know, that they were indicted for was Mark Meadows. He was charged with one, count 28, I believe it is, which is that one of the counts that was just dismissed by Judge McAfee related to an alleged solicitation of oath of office. That relates to that Raffensperger phone call, which Meadows was on. And then he's also charged with count one, the racketeering conspiracy. So this leaves him with just that racketeering conspiracy charge. This doesn't mean, however, that, you know, the district attorney can't continue to prosecute Meadows without having another standalone charge.

You don't have to, you know, have each person having a, a predicate, a crime proved against them in order to establish the elements for RICO. But they still would have to prove, you know, that he was a part of the enterprise that, and that he committed at least one of the overt acts that are charged in the indictment. So this doesn't mean that the case against Meadows goes away, but I do think that it's the kind of thing that Fani Willis probably isn't going to be feeling great about Meadows only having that one count against him, if that's somebody that she feels like is what one of the big fish in the conspiracy that you know, all signs point towards him being someone that she very much, you know, doesn't want to offer a deal to and, and is someone that, that they seem to consider to be one of the big fish. So, I think that's just something that I would add on that point is how this specifically impacts the case against Meadows.

Benjamin Wittes: Tell me, what do you think about what tea leaves you can and can't read into the disqualification question because of this?

Anna Bower: Yeah, I don't know. I think I'm with Anthony where it, it makes me lean a little bit towards thinking that it's maybe less likely based on, you know, reading these tea leaves, I would be less likely to bet on disqualification and, and more likely to think that he may not disqualify Fani Willis. But at the same time, I think it's important to note that Judge McAfee stays on this case whether or not Fani Willis is disqualified. So he was going-

Benjamin Wittes: So he would have to rule on this end of anyway.

Anna Bower: Exactly. He would have to make some kind of ruling on this. Anyway, it's already been fully briefed. It's not as though he would wait until the Prosecuting Attorneys Council appointed a new DA to, you know, continue briefing on the matter or something like that. He, he was gonna have to rule anyway, so I, I guess I'm not entirely convinced that we can read that much into this. I, I think that it maybe does lean towards no DQ, but hard to tell.

Benjamin Wittes: Alright, so let's talk about the merits of Judge McAfee's ruling. And just for those of you who don't know this internally at Lawfare, we always call him boy wonder. So if I if I slip up and call him boy wonder on air, I am referring to Judge McAfee. Alright, so let's talk about the, the, the substance of the ruling here. He basically, as, as Anthony describes, rules that it is not sufficiently clear by what means Trump and others tried to solicit Raffensperger and others to violate their oath of office, that there are potentially countless ways they could have been meaning to do this and the indictment, the alleged conduct in the indictment doesn't really specify.

So my question is, first of all, he seems to assume that the means of the violation is necessarily some felony, that he's soliciting a, a crime. But there are a lot of ways to violate your oath of office that are not felonious. And I'm wondering if Judge McAfee is wrong that you need to have a predicate crime for solicitation to violate your oath of office. Couldn't you violate your oath of office, say, by doing something that is not within your lawful power but may not violate a criminal statute? So, do you think McAfee is right here?

Anna Bower: Well, let me make sure that we're thinking about this the same way because my understanding when he's talking about the, the predicate crime or the predicate felony is that he's talking about the fact that this is a, that the theory of the case that's alleged in the indictment is a mashup between the solicitation statute of the code and then the actual crime, felony crime of a violation, a willful violation of oath of office, which is something that someone like Raffensperger could commit if they did, you know, XYZ as a result of that phone call. But I don't know that he's necessarily, like, how is it that he's necessarily saying that it has to be a crime to- Do, do you understand what I'm saying?

Benjamin Wittes: I do. And I, and I'm not sure I know the answer. Like maybe what he's saying is like, the opinion is so short that it's, it's actually, like not super easy for me without like sitting down with it next to the indictment and like going through the predicate facts and lining them up. I, I actually had a little bit of trouble figuring out what he was saying.

But maybe what he's saying is, okay, the predicate offense is violating your oath of office, but you need to lay out the specific factual pattern that would constitute the violation of your oath of office in order to perfect the allegation that he solicited a violation of that oath of office. I have no idea if that's a coherent English sentence.

Anna Bower: I think that's right, Ben, and I think that it's, it's that, you know, you need to specify the exact, you know constitutional provision within that is that is so I don't necessarily-

Benjamin Wittes: So in other words, it would cure it in this vision to allege, assuming you could prove it beyond a reasonable doubt, that Trump sought from Brad Raffensperger in that phone call that he count 11,000 etc more votes falsely in order to produce the win that he was not entitled to, but it's simply a level of factual specificity.

Anna Bower: Yeah, I think that, I think that's right. That's how I understood it. But again, as you say, this order is a little bit vague in exactly what needs to be done. And there might be some answers to what exactly needs to be done in some of the argument, you know, that, that there was extensive briefing and argument on this matter.

I would need to go back and listen to Judge McAfee's reactions to some of this, so there might be some things that I'm just forgetting at the moment that McAfee maybe gave more context clues to the state then about what exactly they need to do, but it is a little bit vague, this order, in terms of setting out, like, you need to allege XYZ in order to have something that is sufficient.

Benjamin Wittes: So I just looked at Trump's Truth Social account to see if he was crying victory and total vindication, and so far at least he has not, and I'm curious what you make of that. Is that because he can't pronounce special demurrer like I can't, or is it because he's getting a charge thrown out for now, while the underlying case remains in place, it's just not of enough of a victory to do- he's claimed victory over much less. Why is he silent about this?

Anna Bower: I don't know. I, I will say I did hear from his attorney reached out after this decision came out and his attorney, Steve Sadow, did send us a comment. I, let me read it really quickly. It's they, the accounts, you know, were properly, this is a correct application of the law, they said, because the prosecution failed to make specific allegations of any alleged wrongdoing on those counts. The entire prosecution of President Trump as political constitutes election interference and should be dismissed.

So I, I mean, I, I do, I say that just to say that his, his legal team certainly is you know, commenting on it and sees this as a victory. I just think that it might be that maybe he just hasn't gotten around to drafting whatever it is that he wants to say about it. I, I would suspect that he's very likely to have a lot of Truth Social posts about this at some point today. But Ben, what's your read on it? And like, why do you, why do you think he hasn't said anything?

Benjamin Wittes: So, so first of all, I, you know, We, we spend a lot of time ragging on the performance of some of Trump's lawyers. I, I think Steve Sadow is a, is a terrific lawyer and this is getting these cases dismissed or these charges quashed is actually a pretty cool little feat of technical lawyering. This is exactly the kind of detail work that we, you know, joke about Alina Habba not doing right.

It's, it's looking at the charges and looking and saying, hey, how, with what degree of particularity are they being pled? Can we make a vagueness argument? Can we, but what kind of argument can we make? So, you know, the second half of that statement is a political statement, but the first half is like Steve Sadow is, is, he gets points on this one, assuming that it's his motion. I, I haven't actually looked at who filed the underlying motion.

Anna Bower: They, they all, there were several, I mean, all of them filed variations on this one. I think Trump adopted, I think it was Ray Smith maybe who did the original one. And Ray Smith's attorneys are very good. He has some attorneys who have really good reputations within the Georgia criminal defense community.

Benjamin Wittes: Yeah, I mean, this is, this is a, you know, a good example of the difference between good lawyering and bad lawyering in a case like this, right? So, leave aside, there's a big show going on over the disqualification thing, that's a different matter. You know, this was noticing a problem in several of the specific counts, bringing it to the judge's attention, briefing it convincingly, and getting a judge who is not, you know, Scott McAfee has been a sort of down the middle straight shooter, getting him to agree with you that you've got, they've got to refile these cases, these if they want to, if they want to try them. So I, I want to, you know, hat tip to Steve Sadow and his colleagues.

Look, the second half of that statement is political garbage. It's, you know, and it is a good lawyer's job to, let's just talk about the lawyering of that statement for a minute, to take a true fact, a good analytical point up front, and then build off of it something that goes way beyond what a reasonable person would conclude from that. And so, yeah, we found a technical problem with this and Scott McAfee agreed with us and good for him. And by the way, this shows that the whole thing is bullshit. And, you know, that's wrong.

Like, I do think it's important to evaluate the Trump lawyering on a very case by case basis because both this round of Trump lawyers in Georgia and the previous round I forget his name, the billion dollar lawyer, were quite good. And I think Trump is very well represented in Georgia in contrast to some of the representation in the civil cases in New York, which was disastrous. And I am not a huge fan of the way Mr. Lauro has pled certain of the immunity questions, which are, you know, sort of wildly overbroad. But I do think that the Georgia case is being very well handled by Trump's counsel.

And importantly, I'm curious for your thoughts on this, they went with just kind of normal Atlanta lawyers who aren't particularly known, like I don't think Steve Sadow is known to be like a movement Trumpy guy, and certainly his predecessor was not, and so there's not this sort of sense that they're kind of inside MAGA, they’re just like defense lawyers, and it's kind of refreshing that their, their behavior is pretty predictable, just like, oh, this is exactly what the, you would expect the Georgia defense bar to do. And look, sometimes it works.

Anna Bower: No, I, I think that's right. I, I've, long said that I think that Trump's Georgia legal team is his best legal team that he's had, you know, which in some respects that's not a high bar but they have really gone above and beyond and, and have really had some zealous representation of Trump. I mean, Steve is an incredibly well known lawyer in the Atlanta legal community, but you're right. These, these are folks who for the most part across this case are people who, you know, are local attorneys. Meadows does have some big shots who are representing him in the case.

Benjamin Wittes: I mean, he has McGuireWoods, which is, yeah.

Anna Bower: And he has Paul Clement and, and, but that's in the kind of part of the case that is related to the removal proceedings. He also has a local attorney. So it's, it's very interesting to see how even at the local level, the representation as compared to, you know, some of the other high flyers that Trump has in his federal cases.

Actually, I think that these local attorneys are giving him the best representation he's ever had. So, you know, credit to them. With that said, I do think that of course, the, the statement, the, the part about the prosecution being election interference and all of that, that is very much defense attorney speak and, of course, they're going to say that.

Benjamin Wittes: Let's turn back to, for a moment, to the disqualification issue. So, two weeks ago, Friday, so, twelve days ago, Scott McAfee heard oral arguments and said he'd try to rule in two weeks. And then last week he did a radio interview because he, unlike Tanya Chutkan and Aileen Cannon, has to face voters. And he has now competition for, for election, and so he did a radio interview, he was asked whether he was going to make his deadline, and he basically said yes. So, are we expecting a disqualification ruling in the next 48 hours?

Anna Bower: We are. I, I will also say that as, as recently as, I don't know if you saw this Ben, but as recently as like an hour or two ago Jason Morris who is, works at CNN and has been reporting a lot on the Fulton County case ran into Judge McAfee outside of the courthouse today and was able to ask him if he would keep to his timeline. And Judge McAfee said, yes, he, he planned to stick with his timeline. So, we should see by the end of this week. If you had to ask me, I'm thinking it's going to be Friday because it just seems like the day, the Friday news dump day I think that it, that seems likely, but who knows? It could be at any time at this point.

Benjamin Wittes: So there were a bunch of other rulings that came out today. I have not had a chance to look at any of them. Have you?

Anna Bower: A bunch of other rulings?

Benjamin Wittes: Am I wrong about that? I thought there were some other rulings on special demurrer matters.

Anna Bower: Oh, well, I think that they're, so, I, I, I mean, I need to check. We don't have access to the docket still because of the cyber attack. So there were several when this motion first came out, there were a bunch of orders that came in on the docket system that you could only see, like, the first page of but you're not able to actually access. I think though it's all the same special demurrer order that McAfee issued today. I know that sounds confusing to people who have not seen the docket, but trust me, it makes sense if you know what I'm talking about. But basically, the cyber-attack has really impacted our ability to get documents immediately. But as far as I'm aware, other than this order, there, there's not, you know, anything more that has been released today.

Benjamin Wittes: All right, so a programming note. We will be back tomorrow for our regularly scheduled Lawfare Trump Trials and Tribulations. We are going to do it at five o'clock p.m. eastern time however, not four because Judge Aileen Cannon is having an all-day hearing in Florida that Roger Parloff is attending. So we will be here, regular day, but not regular time, on Thursday. And then on Friday, in the event that there is a disqualification ruling, Anna and I, at least, will be back for a debrief. Maybe with Anthony, maybe with Roger Parloff. Who knows? We may even drag in folks off the street. A reminder that when we do these live recordings of the podcast, we do not have an internal audience for it because we put them together super, super fast. So these are on YouTube and on the podcast feed, but we don't take live questions during them.

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Anna Bower: This is the mirror room.

Benjamin Wittes: You know, the heating alone in the palatial mansion is a major cost item for Lawfare, so we will, we appreciate all user and reader and listener and viewer support. You guys have a great day. We will be back soon.

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer is the intrepid Anna Hickey of Lawfare. Folks, I said it on the recording, gonna say it again, become a material supporter of Lawfare. You use the site, you listen to the material, we are incurring big expenses to bring you this coverage and we need your help. Go to lawfaremedia.org/support and figure out any of several ways to contribute to this work. You'll get ad-free podcasts along the way. The Lawfare Podcast is edited by the one, the only Jen Patja. Our music is performed by Sophia Yan. And as always, thanks for listening.